| 2.1 |
Undertaking of the Company |
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| 2.1.1 |
The Company undertakes to provide telecommunications
services to Customers for their lawful direct transmission
and reception of voice, data, and other types of communications
in accordance with the terms and conditions set forth
in this Agreement. |
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| 2.1.2 |
All service is subject to the
availability of necessary
and suitable facilities and to the provisions of this Agreement.
The Company or its designee may act as the Customer's agent
for ordering access connection facilities provided by other
carriers or entities, when authorized by the Customer, to allow
connection of a Customer's location to a service provided by
the Company. The Customer shall be responsible for all charges
due for such service arrangement. |
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| 2.1.3 |
The Company's services are provided on a
monthly basis unless otherwise provided, and are
available twenty-four (24) hours per day, seven (7) days per week. |
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| 2.1.4 |
For additional cost, and subject to
availability, the Customer may use Authorization Codes to
identify the users or user groups on an account. The numerical composition of the codes shall
be set by the Company to assure compatibility with the Company's accounting and billing
systems and to avoid the duplication of codes. |
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| 2.1.5 |
The Company shall not be responsible
for any installation, operation or maintenance of any
Customer provided communications equipment. Where such equipment is connected to service
furnished pursuant to this Agreement, the responsibility of the Company shall be limited to the
furnishing of services under this Agreement and to the maintenance and operation of such
services in the proper manner. |
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| 2.1.6 |
Customer provided station equipment
at the Customer's premises for use in connection with this
service shall be so constructed, maintained and operated as to work satisfactorily with the
facilities of the Company. The Company assumes no liability with respect to the operation or
maintenance of such equipment. |
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| 2.2 |
Limitations |
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| 2.2.1 |
Service is offered subject to the availability
of facilities and the provisions of this Agreement. |
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| 2.2.2 |
The Company reserves the right to
disconnect service immediately without incurring liability
when necessitated by conditions beyond the Company's control or when the Customer is using
the service in violation of either the provisions of this Agreement or the laws, rules,
regulations or policies of the jurisdiction of the Calling Station or the Called Station or
the laws of the United States, including rules, regulations and policies of the Commission. |
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| 2.2.3 |
The Company does not undertake to
transmit messages, but offers the use of its facilities when
available, and will not be liable for errors in transmission or for failure to
establish connections. |
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| 2.2.4 |
Prior written permission from the
Company is required before any assignment or transfer. All
regulations and conditions contained in this Agreement shall apply to all such permitted
assignees or transferees, as well as all conditions of service. |
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| 2.2.5 |
Under certain circumstances, RCN's Voice-Over-Internet-Protocol
("VoIP") service (where available) will not support Traditional 911 or Enhanced 911 (E911) dialing
access to emergency services. The address associated with an E911 call on RCN's VoIP service is
specific to the Customer's original service location only. Movement of the VoIP equipment from the
original service location to a new service location may result in a mistaken identification of the
E911 call as having come from the original location. Furthermore, 911 dialing on RCN's VoIP service
will not function in the event of a power failure or improper network connection and/or function.
Customer understands and acknowledges that RCN, its affiliates, subsidiaries, parent companies and
network service providers, will have no liability whatsoever with respect to 911 dialing on RCN's
VoIP service. Customer agrees to defend, indemnify and hold harmless the aforementioned entities
from any claims, losses, damages, costs and expenses (including reasonable attorneys' fees) relating
to such 911 dialing by Customer and/or any user of Customer's VoIP service. |
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| 2.3 |
Use |
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| 2.3.1 |
Services may be used for the lawful
transmission of communications by the Customer
consistent with the provisions of this Agreement. |
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| 2.3.2 |
Service may not be used for any unlawful purpose. The use of the Company's services to make
calls which might reasonably be expected to frighten, abuse, torment or harass another or in
such a way as to unreasonably interfere with use by others is prohibited. |
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| 2.3.3 |
The use of the Company's services without
payment for service, as well as any attempt to avoid
payment for service by fraudulent means or devices, schemes, false or invalid numbers or false
calling or credit cards, is prohibited. |
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| 2.3.4 |
The Company's services are available for use
twenty-four (24) hours per day, seven (7) days per week. |
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| 2.3.5 |
Customers of service provided
under this Agreement may authorize or permit others to use these
services, and may resell or share such services subject to the regulations contained in this
Agreement. The Customer remains responsible to the Company for payment of all charges for
services used by others pursuant to this paragraph, with or without the Customer's knowledge,
and is responsible for notifying the Company immediately of any unauthorized use of services. |
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| 2.4 |
Liabilities of the Company |
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| 2.4.1 |
Except as stated in this Section 2.4, the
Company shall have no liability for damages of any
kind arising out of or related to events, acts, rights or privileges
contemplated in this Agreement. |
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| 2.4.2 |
The Company shall not be liable for any
failure of performance hereunder due to causes beyond
its control, including but not limited to acts of God, fires, flood or other catastrophes; any law,
order, regulation, directive, action or request of the United States Government or any other
government, including state and local governments having jurisdiction over the Company or of
any department, agency, commission, bureau, corporation or other instrumentality of any one or
more of said governments or of any civil or military authority; national emergencies,
insurrections, riots, wars or other labor difficulties. |
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| 2.4.3 |
The Company shall not be liable for any act or omission of any other entity furnishing to the
Customer facilities, equipment or services used with the Company's services. The Company
shall not be liable for any damages or losses due to the failure or negligence of the Customer or
due to the failure of Customer?provided equipment, facilities or services. Company is not liable
for any act or omission of any other company or companies furnishing a portion of the service.
No agents or employees of connecting, concurring or other participating carriers or companies
shall be deemed to be agents or employees of the Company without written authorization. |
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| 2.4.4 |
Company shall not be liable for and Customer shall indemnify and hold Company harmless from
any and all loss claims, demands, suits or other action or liability whatsoever, whether suffered,
made, instituted or asserted by the Customer or by any other party or persons, for any
personal injury to or death of any person or persons, and for any loss, damage, defacement or
destruction of the premises of the Customer or any other property, whether owned by the
Customer or by others, caused or claimed to have been caused, directly or indirectly, by the
installation, operation, failure to operate, maintenance, removal, presence, condition, location or
use of equipment or wiring provided by Company where such installation, operation, failure to
operate, maintenance, condition, location or use is not the direct result of Company's
negligence. |
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| 2.4.5 |
The liability of the Company for mistakes, omissions, interruptions, delays, errors or defects in
transmission shall not exceed an amount equivalent to the proportionate recurring charge to the
Customer for the period of service during which such events occur. Except as may be provided
to the contrary under applicable law, no credit shall be allowed for an interruption of a
continuous duration of less than two (2) hours. For purposes of determining service credits, a
month shall be deemed to have seven hundred twenty (720) hours. Any credits will be set off
against charges billed during the next month. |
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| 2.4.6 |
Company shall be indemnified and
held harmless by the Customer against: |
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A. |
claims for libel, slander, infringement of copyright or unauthorized use of any
trademark, trade name or service mark arising out of the material, data,
information or other content transmitted over Company's facilities; and |
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B. |
claims for patent infringement arising from combining or
connecting Company's facilities with apparatus and systems of the Customer; and |
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C. |
all other claims arising out of any act or omission of the
Customer in any service provided by Company. |
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| 2.4.7 |
The Company shall not be liable for damages or adjustment, refund or cancellation of charges
unless the Customer has notified the Company in writing of any dispute concerning charges or
the basis of any claim for damages within thirty (30) calendar days after the invoice is rendered
or a debit is effected by the Company for the call giving rise to such dispute or claim. Any such
notice must set forth sufficient facts to provide the Company with a reasonable basis upon
which to evaluate the Customer's claim or demands. If notice of a dispute concerning the
charges is not received, in writing, within thirty (30) calendar days after an invoice is rendered or
a debit is effected, such invoice shall be deemed to be correct, accepted and binding upon the
Customer. |
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| 2.5 |
Obligations of the Customer |
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| 2.5.1 |
The Customer shall provide the personnel,
power and space required to operate all facilities and
associated equipment installed on the premises of the Customer. |
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| 2.5.2 |
The Customer shall be responsible for providing Company personnel access to premises of the
Customer at any reasonable hour for the purpose of testing the facilities or equipment of the
Company. |
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| 2.5.3 |
The Customer will be liable for damages to
the facilities of the Company caused by the negligence or willful acts of any
officers, employees, agents or contractors of the Customer. |
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| 2.5.4 |
The Company may, upon notification of the Customer, at a reasonable time, make such tests
and inspections as may be necessary to determine that the requirements of this Agreement are
being complied with in the installation, operation and maintenance of Customer provided
equipment and in the wiring of the connection of Customer channels to Company owned
facilities. The Company may temporarily suspend service without liability, while making such
tests and inspections, and thereafter until any violations of such requirements are corrected. |
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| 2.5.5 |
The Company may take such action as necessary to protect its operations and personnel and
will promptly notify the Customer in writing of the need for protective action. In the event that the
Customer fails to advise the Company within ten (10) days after such notice is received that
corrective action has been taken, the Company may take whatever additional action is deemed
necessary, including the suspension of service, to protect its operations and personnel from
harm. The Company will, upon twenty-four (24) hours advance request, provide Customer with a
statement of technical parameters that the Customer's equipment must meet. |
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| 2.5.6 |
The Customer is responsible for prompt
payment of all charges for services rendered by the Company. |
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| 2.5.7 |
The name(s) of the Customer(s) desiring to
use the service must be set forth in the application for service. |
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| 2.6. |
Interruption of Service
Credit allowance for interruptions of service which are not due to Company's
testing or adjusting, to the negligence of the Customer, or to the failure of
channels, equipment and/or communications equipment provided by the Customer,
are subject to the general liability provisions set forth in Section 2.4, herein.
It shall be the obligation of the Customer to notify Company of any interruptions
of service. Before giving such notice, the Customer shall ascertain that the
trouble is not being caused by any action or omission of the Customer, not
within the Customer's control, and/or is not in the wiring or equipment connected
to the terminal of the Company. |
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| 2.7 |
Restoration of Service
The use and restoration of service in emergencies shall be in accordance
with Part 64, Subpart D of the Commission's Rules and Regulations, which
specifies the priority system for such activities. |
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| 2.8 |
Deposits |
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| 2.8.1 |
RCN will perform credit history review
and credit reference checks for all 800 Service customers and any other
accounts that are anticipated to have monthly charges of five hundred dollars
($500.00) or more. RCN also reserves the right to require deposits from Customers. |
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| 2.8.2 |
Any applicant whose credit has not
otherwise been duly established as provided in Section 2.8.1 hereof may be
required to make a deposit to be held as a guarantee of payment of charges.
In addition, an existing Customer may be required to make a deposit or to
increase a deposit presently held in the event that the conditions of service
or basis on which credit was originally established have materially changed. |
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| 2.8.3 |
The amount of any deposit shall not
exceed the estimated charges for three (3) months service or, in the case
of seasonal service, one?half of the estimated charge for the season involved. |
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| 2.8.4 |
A deposit will be returned: |
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when an application for service has been
canceled prior to the establishment of service. The deposit will be applied to
any charges applicable in accordance with this Agreement and the excess portion
of the deposit will be returned. |
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B. |
upon discontinuance of service. The
Company will refund the Customer's Deposit or the balance in excess of unpaid
bills. |
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after one (1) year of service, provided
that the Customer has not been delinquent on any payment due during such one
(1) year period. |
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| 2.9 |
Payments and Billing |
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| 2.9.1 |
Service is provided and billed on a
monthly basis. Unless otherwise agreed, the minimum service period is
one month (30 days), although Customer's initial and/or final bill may be
for a greater or lesser period for administrative reasons. Service continues
to be provided until canceled by Customer in accordance with the provisions of
this Agreement. |
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| 2.9.2 |
The Customer is responsible for
the payment of all charges for services furnished by the Company. |
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| 2.9.3 |
Bills are due and payable upon
receipt and past due thirty (30) days after issuance. Past due amounts
are subject to late charges which shall be assessed at a rate not to
exceed eighteen percent (18%) per year. |
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| 2.9.4 |
An additional charge will be
assessed for any Customer check returned as non-payable. Such
charge shall not exceed thirty dollars ($30.00) per check returned. |
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| 2.9.5 |
A reactivation fee of twenty-five
dollars ($25.00) will be assessed if service has been turned off.
The Company reserves the right to waive the fee if circumstances require. |
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| 2.9.6 |
Customer questions, complaints and
disputes regarding billing or service provided by the Company may be
referred to Company's customer service department. |
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| 2.10 |
Cancellation by Customer |
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| 2.10.1 |
Residential Customers may cancel service
by giving notice to RCN; however, the Customer shall remain liable for charges
incurred prior to such cancellation. Business Customers may cancel service
upon not less than thirty (30) days' written notice to RCN unless a longer notice
period is specified in an applicable service contract executed by the Customer. |
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| 2.10.2 |
If the Customer has ordered service
requiring special facilities dedicated to the Customer's use and then cancels
the order before completion of the minimum service period or some other period
mutually agreed with the Customer, the Customer shall be liable for the
non-recoverable portions of expenditures or liabilities incurred expressly
on behalf of the Customer by Company. |
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| 2.11 |
Interconnection |
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| 2.11.1 |
Service furnished by Company may be
interconnected with services or facilities of other authorized communications
common carriers and with private systems, subject to the technical limitations
established by Company. Any special interface of equipment or facilities necessary
to achieve compatibility between the facilities of Company and other participating
carriers shall be provided at the Customer's expense. |
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| 2.11.2 |
Interconnection between facilities or
services of other carriers shall be under the applicable terms and conditions
of the other carrier's agreements. The Customer is responsible for taking
all necessary legal steps for interconnecting Customer provided terminal
equipment or communications equipment with Company's facilities. The Customer
shall secure all licenses, permits, rights-of-way and other such arrangements
necessary for interconnection. |
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| 2.12 |
Cancellation by Company |
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| 2.12.1 |
Service may be discontinued or temporarily
suspended by the Company, without notice to the Customer, by blocking traffic
to certain cities or NXX exchanges, or by blocking calls using certain
Authorization Codes, when the Company deems it necessary to take such action to
prevent unlawful use of its service. The Company will restore service as soon as
it can be provided without undue risk. |
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| 2.12.2 |
Without incurring liability, and upon
reasonable notice to Customer, where such notice can be given, the Company
may discontinue the provision of service to a Customer or to a particular
Customer location or may withhold the provision of ordered or contracted services: |
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for nonpayment of any sum due to the
Company for more than thirty (30) days after issuance of the bill for the
amount due; or |
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B. |
for violation of any of the provisions
of this Agreement; or |
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C. |
for violation of any law, rule,
regulation or policy of any governing authority having
jurisdiction over the Company's services; or |
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D. |
by reason of any order or decision
of a court, public service commission or federal regulatory body or other
governing authority prohibiting the Company from furnishing its services. |
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| 2.13 |
Taxes
All state and local taxes (i.e. gross receipts tax, sales tax, municipal
utilities tax) and/or regulatory fees are listed as separate line items
and are not included in the quoted rates. Customers shall be responsible
for any applicable taxes or regulatory fees. |
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| 2.14 |
Transfer or Assignment
The Company's interstate services may not be transferred or assigned
to a new Customer without the express written consent of the Company.
Such transfer or assignment shall only apply where there is no interruption
of the use or location of the service or facilities. All regulations and
conditions contained in this Agreement shall apply to all such permitted
assignees or transferees, as well as all conditions of service. |
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| 2.15 |
Mileage Measurements
Each rate center or POP has a unique set of assigned vertical and
horizontal (V&H) coordinates which are used by the underlying carrier
for calculating mileage. |
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| 2.15.1 |
The following services are not
mileage sensitive: RCN Switched Outbound, RCN Switched Inbound, RCN
25 Cent Card, Directory Assistance, Commercial Switched Outbound,
Commercial Switched Inbound, Commercial Dedicated Outbound, Commercial
Dedicated Inbound. |
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